holding that the “union’s refusal to process plaintiff’s grievance was reasonable or in good faith since [plaintiff] admittedly did not request it to do so within thirty days of his termination by ACF” as required by the CBA
How later courts described this case
- holding that the “union’s refusal to process plaintiff’s grievance was reasonable or in good faith since [plaintiff] admittedly did not request it to do so within thirty days of his termination by ACF” as required by the CBA
- noting “the law is clear that summary judgment is a final judgment on the merits sufficient to raise the defense of res judicata in a subsequent action between the parties”
- stating that a motion for summary judgment “may be made before pleading to the complaint”
- noting that summary judgment is a final judgment on the merits for res judicata purposes
Written by the judges who cited it.
The opinion
GERALD McLAUGHLIN, Circuit Judge
(dissenting).
On February 24, 1970 appellant was terminated from his employment by his employer ACF Industries, Inc.
*527 On April 28, 1971 appellant filed a civil suit against his employer asking for reinstatement and money damages from the defendant company. On May 27, 1971 the defendant company filed a petition for removal to the Middle District, Pennsylvania. Why that petition was granted does not appear. Said company then filed a motion for summary judgment which was also granted on November 4, 1971. The trial court on April 10, 1972 refused appellant’s motion to allow grievance procedure to be used in connection with the employment contract. Appellant thereafter appealed to this court. Hubicki filed a new complaint. Appellee claims that the fresh complaint was barred by the November 4, 1971 summary judgment (this is said to be presently pending, presumably in the Middle District of the United States District Court, Pennsylvania).
Appellant contends that the Collective Bargaining Agreement between the employer and employee’s union (United Steelworkers) is helpful to his claim for reinstatement by his employer under the facts. Appellant has been with appellee for twenty-three years, his whole working lifetime so far. In Republic Steel Corporation v. Maddox, 379 U.S. 650 , 85 5. Ct. 614, 13 L.Ed.2d 580 (1965), the Supreme Court held that employer must attempt the use of contract grievance procedure as to the mode of redress. See Yaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967). See also the Maddox case above noted. The district court flatly refused to allow appellant to amend his complaint thus putting appellant right out of court. His claim was never disposed of on its merits. We held in Martucci v. Moyer, 210 F.2d 259 (3 Cir. 1954) in a similar situation that summary judgment was not to be allowed as appellant’s claim was not decided on the merits. At most the court should have abated the action and not bar it completely as was done here. See also Whitner v. Davis, 410 F.2d 24, 31 (9 Cir. 1969), where even with summary judgment against plaintiff under Rule 15(a), he was entitled to an amendment as plaintiff in this matter is. At most, the action should have been abated until the complaint set up the cause of action properly.
The first complaint in suit is against the employer and we have seen the latter’s attitude toward Hubicki.
We now take up the action as to plaintiff Hubicki’s claim against his union. On February 1, 1970 appellant’s home in Danville was burned to the ground. For two weeks after that, in the middle of the Pennsylvania winter he tried to repair a house in Danville so that he, his wife and family could exist there for the time being. He had that job fairly well accomplished by February 14. He had already notified his employer that he needed time to put the house he was fixing into livable condition. He had the substitute housing basically ready by April 1, 1970. His own family stayed with relatives meanwhile. A letter from his employer terminating his rights did not reach him until sometime around the beginning of April 1970. He promptly notified his union representative who tried to have the employer rescind its action but was told by his union nothing could be done about it. He then asked the company to allow him to present his grievance in accord with the employment contract but the company refused several times. It comes up clearly that at the first chance the union and employer had at Hubicki in twenty-three years they both betrayed the trust that appellant had an absolute right to expect from the both of them. Hubicki’s union had the bounden duty to protect the appellant member in his tragic predicament where he had to secure shelter for his wife and children as quickly as possible. The employer knew of Hubicki’s problem. There is nothing in this entire case that even attempts to charge that there was any fault whatsoever on the part of the plaintiff. There was basically not the slightest effort on the part of the union or the employer to help Hubicki obtain living quarters for his people and himself and so to enable him to return to his job.
*528 The result before us is unconscionable in the brazen disregard by the union and the employer of their duties to Hubicki.
I would reverse the judgment of the district court and order that the union and the employer see to it forthwith that appellant is restored to his job. Whatever wages appellant has lost because of the attitudes of the union and the employer should be ordered to be paid to appellant immediately, half by said union and half by the employer.